Mr. Madon applies for an order of "statusquo" for 4 weeks. There is no admitted status quo by the parties in the suit property. The Court cannot pass any order of "statusquo" unless the status of the suit property is admitted by the parties or shown to Court by photographs or otherwise.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.S. DALVI, J.
Vimal Builders Vs. Nand Kumar Anant Vaity & Ors.
Notice of Motion No.3514 of 2008,Suit No.2715 of 2007
3rd March, 2009
JUDGMENT :- This Suit is filed by the purchaser of a property which initially belonged to Defendant Nos.1 to 39. Defendant Nos.1 to 39, who are admittedly the original owners of the suit property, entered into an Agreement with Defendant No.40. Defendant No.40 entered into the Agreement with the Plaintiff. The Plaintiff contends that Defendant No.41-Society has no right in the suit premises. Defendant No.41-Society had earlier entered into an Agreement with Defendant Nos.1 to 39, under which it claims to have been put in possession. The Plaintiff also claims to be in possession of the suit property. The suit property is open vacant land. It would be prudent to understand the transactions that took place in respect of the suit property chronologically.
2. The initial Agreement of Defendant Nos.1 to 39 with Defendant No.41 was executed on 24.10.1981. The said Memorandum of Understanding (MOU) shows "the entire purchase price of Rs.3,26,390/-" deposited with M/s. Solomon & Co., Advocates & Solicitors, who have paid certain vendors from amongst Defendant Nos.1 to 39 specified sums as mentioned therein. Defendant Nos.1 to 39 acknowledged receipt of the entire purchase price. Defendant Nos.1 to 39 confirmed having delivered to Defendant No.41 actual vacant possession of the entire suit property.
3. Defendant Nos.1 to 39 also executed a Power of Attorney in favour of 3 members of Defendant No.41 - Society to develop the property as also to execute any deeds or conveyances in their favour. They recited in the Power of Attorney the factum of they having received full consideration for their property and having put the Society in possession of the property.
4. On the same date, they executed a separate letter confirming delivery of possession. MOU as well as the Power of Attorney have not been registered. The Society came to be registered on 23.11.1987. There has been certain correspondence as well as criminal complaints between Defendant Nos.1 to 39 who claim ownership rights as well as possession and Defendant No.41-Society who claims to have been put in possession.
5. On 18.8.1989, a registered Deed of Conveyance came to be executed purportedly between Defendant Nos.1 to 39 as the owners and Defendant No.41-Society. However, that conveyance has been executed by the 3 members of the Society in whose favour the Power of Attorney was executed by Defendant Nos.1 to 39. The Plaintiff has sought to show a number of anomalies with regard to the names of the owners as the vendors in the said conveyance. Some of the owners are shown to be minors. Some of the owners, who are earlier minors at the time of the execution of the MOU, had since become majors, which was not so reflected. Some of the members of the family of the vendors had died prior to the execution of the conveyance. It is contended on behalf of the Plaintiff that the conveyance is vitiated on the ground that the Power of Attorney stood terminated upon the death of some of the members and that certain other members of the family, who were shown as minors, were in fact not minors at the time of the execution of the conveyance. It is contended on behalf of Defendant No.41-Society that the Power of Attorney was irrevocable inasmuch as the entire consideration amount was paid at the time of the execution of the MOU and the Society was put in possession of the suit property and hence it does not matter that some of the members had died when the conveyance was sought to be executed on their behalf by their Constituted Attorneys.
6. The Plaintiff also seeks to contend that the entire consideration amount was not paid by Defendant No.41-Society to Defendant Nos.1 to 39. The Plaintiff has relied upon a letter dated 18.11.1993 of M/s. Solomon & Co., Advocates & Solicitors on behalf of the Society showing that the Solicitors had received Rs.3,69,650.50 from the Society. The letter shows the appropriation of that amount by the Solicitors towards payment to certain persons, including some of the vendors as well as payment for certain expenses in respect of the suit property. The letter shows the specific amount s paid to the vendors directly or deposited with the relevant Post Office as also the amount retained by the Solicitors pending production of the certificate under Section 230-A of the Income Tax Act by the vendors, towards the half share of the vendors for stamp duty and registration charges and other expenses. The letter further shows that the certificate under Section 230-A of the Income Tax Act cannot be applied for unless a conveyance is ready for execution. In fact the conveyance has been shown to have been executed on 18.8.1989.
7. It may be mentioned that the letter dated 18.11.1993 mentions the amount received by the Solicitors which is more than the amount of the entire purchase price mentioned in the MOU dated 24.10.1981.
8. On 20.7.1994, the certificate under Section 230-A of the Income Tax Act was obtained. On 22.11.1994, the ULC permission is stated to have been obtained. On 29.11.1994, the conveyance came to be registered. Certain mutation entry came to be made entering the name of the Society on 27.4.1995 from which also there have been certain proceedings in the Revenue Courts between Defendant No.41 and the owners Defendant Nos.1 to 39.
9. It may be mentioned that the owners have not sued for any declaration that the document s executed by them or some of them are vitiated on any ground. Defendant Nos.1 to 39 issued a Public Notice that the Power of Attorney dated 24.10.1981 granted to the 3 members of Defendant No.41-Society and stood cancelled and that the Society had no right, title or interest in their property. It is contended on behalf of the Society by Mr. Shah that only after the entire transaction was completed, the Society was put in possession and the revenue records came to be altered that such a notice was given which is of no consequence.
10. On 18.12.1995, Defendant Nos.1 to 39 executed a unilateral Deed of Cancellation of their Agreement upon the grounds that some of the persons of their family had expired on the date of sale, their legal heirs were excluded from the sale, the Power of Attorney was not duly registered or duly notarized, some of the minors had then attained majority but were not so shown, the Society had obtained false receipt of taking over actual possession, consideration amount was not fully paid and although the conveyance was executed on 18.8.1989, it was "kept pending for registration" for want of the income tax certificate and the amount calculated for the purpose of payment of stamp duty was not in fact paid to the vendors and hence the conveyance was not binding upon them. It is unknown under what provisions of law a mere execution of a Deed of Cancellation only by the vendors could cancel the transaction between the parties already executed in the absence of any action in law and order from a competent Civil Court.
11. In 2001, Defendant Nos.1 to 39 filed a Suit for protection of their possession in the Bombay City Civil Court. This Suit has since been withdrawn unconditionally on 19.9.2003.
12. On 4.10.2002, Defendant Nos.1 to 39 executed an unregistered MOU with Defendant No.40. The MOU was registered on 31.10.2002. Defendant No.40 has thereafter executed an MOU in favour of the Plaintiff on 8.7.2003, after which the original owners, Defendant Nos.1 to 39, withdrew the aforesaid Suit. Defendant No.40 executed the formal Development Agreement with the Plaintiff on 27.11.2003.
13. In a dispute filed in the Co-operative Court by some of the members of Defendant No.41-Society, Court Receiver came to be appointed on 28.11.2003. The Plaintiff was not a party to that Suit. The Court Receiver visited the suit property on 8.12.2003 and made a report. Aside from the parties to that lis being present, the Court Receiver has recorded the presence of a person representing Defendant No.40 and one Santosh Chavan representing the Plaintiff as Site In-charge. The Court Receiver erected certain boards of the Court Receiver at prominent places at the suit property, including one board at the entrance of the suit property. The Court Receiver did not find any construction put up on the suit property or any cultivation made thereon.
14. There has been various proceedings from the order of the appointment of the Court Receiver in revision and further a Writ Petition being Writ Petition No.9133 of 2004. The order of this Court in the said Writ Petition passed on 7.12.2004 shows possession having been handed over by Defendant Nos.1 to 39 to Defendant No.41- Society which was not reverted back to them. It is observed that the possession given by the vendors continued with the Society till May, 1995, without any disturbance or objection and that though there were objections to mutation entries being made showing the possession of Defendant No.41-Society, the actual possession was not taken over from the Society or its promoters. Even the factum of cultivation by the vendors and the allegation of the Plaintiff about the structure being constructed on some part of the property was held not to be sufficient to arrive at a conclusion about the cessation of the right of the Society. This prima facie finding resulted in an order to maintain status quo until the merits of the claim of all the parties in possession was considered. A Special Leave Petition (SLP) filed therefrom has been dismissed.
15. It is, therefore, seen that the possession claimed by the Plaintiff by a structure having been put up has not been seen by the Court Receiver or by the Court itself. It is contended on behalf of the Plaintiff that since the Plaintiff's representative was found in the suit property at the time of the possession of the Court Receiver even though the Plaintiff was not a party to the proceedings in the Cooperative Court which appointed the Court Receiver, the Plaintiff's actual possession is seen at-least from that date. It may be mentioned that is after the execution of the MOU by the Plaintiff with Defendant No.40. After the MOU was executed by the Plaintiff, the Plaintiff may have kept a solitary person on the suit property. That factum itself cannot show the juridical possession of the Plaintiff. The fact remains that the Court Receiver put up his board and the property remained custodia legis, which act has not been challenged by the Plaintiff. The Receiver has been discharged on 29.10.2008 and has handed back vacant possession to Defendant No.41-Society, soon after this Suit was filed. No person or structure of the Plaintiff was reported by the Court Receiver to have been on the suit property. Hence "vacant" possession was stated to have been handed over.
16. It is upon this chronology of events that the rights of the Plaintiff in the suit property shall have to be determined. This Suit is filed for specific performance of the Agreement of the Plaintiff with Defendant No.40 dated 27.11.2003. However, the Plaintiff has claimed specific performance not only from Defendant No.40 but also from Defendant Nos.1 to 39. The Plaintiff has claimed declaration that Defendant Nos.1 to 39 are owners and that Defendant No.41 has no right, title and interest in the suit property. The Plaintiff claims orders essentially against Defendant No.41 restraining it from entering upon the suit property or taking over possession of the suit property from the Plaintiff. The Plaintiff must, therefore, show its possession.
17. That possession is sought to be shown specifically from the Court Receiver's Report dated 18.12.2003 and certain photographs. Though the Plaintiff has produced the photographs showing certain construction put up which is stated to be a "model flat", the Court Receiver has not found any such construction at the time of taking possession. Even this Court found no such structure on the suit property in the aforesaid Writ Petition. The Plaintiff seeks to protect such construction by claiming protection of its possession.
18. It is seen that there was an Agreement between Defendant Nos.1 to 39 and Defendant No.41. That Agreement has not been validly terminated. No declaration in respect of that transaction has been claimed by Defendant Nos.1 to 39. By a unilateral Deed of Cancellation reciting reasons why the Agreement with Defendant No.41 was lawful and valid, Defendant Nos.1 to 39 have sought to cancel the Agreement. A Public Notice of the fact that Defendant No.41 has no interest in the suit property has been given before the Agreement has been cancelled. Defendant Nos.1 to 39 have left the matter without obtaining any declaration from any competent Court. After having received consideration, be it in part, and without taking recourse to law for their rights under the transaction entered into by them, Defendant Nos.1 to 39 have sought to create further rights by executing a further Agreement with Defendant No.40 who in turn has executed an MOU with the Plaintiff, since unregistered.
19. Mr. Madon on behalf of the Plaintiff argued that the Plaintiff has applied for IOD, CC, put up construction and for that purpose spent Rs.7 Crores. No amount of work done on the property, which does not belong to a party, can confer title, right or interest to that party. Whatever work that the Plaintiff has done is after the appointment of the Court Receiver. Hence, whatever expenses that the Plaintiff has incurred are also when the property was custodia legis. The Court Receiver continued as such Receiver until after the order in the SLP filed by the Plaintiff. This position continued till after the filing of this Suit. The Court Receiver has since handed back "vacant" possession to Defendant No.41-Society. Hence, the Plaintiff's claim that Defendant No.41-Society cannot disturb the Plaintiff's possession until it followed due legal process is misconceived. Such construction of "model flat" is, therefore, seen to be put up unlawfully whilst the property was custodia legis. Such possession based upon any such construction cannot be protected and the Plaintiff cannot be stated to be in "possession". Hence no relief for protection of any such "possession" can be granted.
20. Mr. Madon argued that Defendant No.41 has no right, title and interest because the Power of Attorney executed by Defendant Nos.1 to 39 in their favour suffers from the various errors as shown in the Deed of Cancellation executed by the vendors. It is only for the vendors to contend that the transaction entered into by a party with them is invalid and show how it is so. That can be done only by the vendors prosecuting an action in law upon that transaction. Defendant Nos.1 to 39 have done nothing of the sort. A third party, who has sought to come on to the suit property, cannot base his title upon the weakness, if any, of the title of its predecessor when the owners of the suit property fail to do so.
21. The possession stated to be given to Defendant No.41-Society in the Agreement, the letter of possession and the Power of Attorney all executed on 24.10.1981 and protected by the Co-operative Court by appointment of the Court Receiver and thereafter upto the highest Court cannot be undone by this Court in a Suit of a party claiming possession after such date.
22. Hence, the Notice of Motion is dismissed. No order as to costs.
23. Mr. Madon applies for an order of "statusquo" for 4 weeks. There is no admitted status quo by the parties in the suit property. The Court cannot pass any order of "statusquo" unless the status of the suit property is admitted by the parties or shown to Court by photographs or otherwise.
24. The Plaintiff claims to be in possession and claims to have put up construction on the suit property. Defendant No.41 also claims to be in possession and has got the Receiver appointed. Defendant No.41 has been handed over the possession of the suit property by the Receiver. One construction block has been put up by the Plaintiff on the suit property albeit despite the appointment of Court Receiver. The block contains what the plaintiff calls "a model flat". The Plaintiff has produced a photograph of the construction. A photograph signed by the Solicitor of the Plaintiff showing the structure put up by the Plaintiff on a portion of the suit premises is taken on record. Mr. Madon states that the Plaintiff has also done some landscaping work on the suit premises. A photograph showing landscaping work on a portion of the suit premises near the "model flat" signed by the Solicitors of the Plaintiff is also taken on record.
25. The parties shall maintain statusquo as shown in the photographs.
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